This case is about discrimination against women who wear religious symbols.

LEAF, in partnership with the Fédération des Femmes du Québec (FFQ), intervened before the Quebec Court of Appeal. LEAF is now intervening at the Supreme Court of Canada.

Facts

Law 21, An Act Respecting the Laicity of the State, restricts the wearing of religious symbols in certain professions with the goal of affirming Québec as a secular state.

For example, women who wear hijabs can no longer be hired as teachers. Women who wear niqabs are prohibited from working in most parts of public administration. Further, women who wear niqabs cannot benefit from public services because the law requires that individuals who wish to receive public services must do so with their faces uncovered. 

The government, well aware that its law infringes equality rights, freedom of expression, and freedom of religion, pre-emptively used the notwithstanding clause to prevent any constitutional challenges.

Arguments

At the Quebec Court of Appeal, LEAF and the FFQ argued that the law infringes gender equality, in particular by discriminating against women who wear religious symbols.  

As interveners, LEAF and the FFQ proposed an analytical framework to the Court of Appeal that will allow for a little-known provision of the Canadian Charter of Rights and Freedoms, section 28, to be used to its full potential. The organizations argued that this provision ensures the protection of gender equality, even when a government chooses to use the override clause.

LEAF is now bringing this same argument to the Supreme Court of Canada, and is grateful to have the FFQ represented on our case committee. 

The section 28 gender equality guarantee was included in the Charter to ensure that women and gender-diverse people would have the same rights as men, and to ensure that the state could not engage in gender-based discrimination with impunity. In a case such as this one, where women are so clearly disproportionately harmed by the effect of a law, LEAF is arguing that the gender equality guarantee can and should step in to declare the law unconstitutional. 

Outcome

The Court of Appeal of Quebec decided that the notwithstanding clause overrides the gender equality guarantee set out in section 28 of the Charter. This means that even where a law has disproportionate discriminatory impacts on the rights of women, and in this case the rights of Muslim women, it can still remain in effect.

This decision is now on appeal to the Supreme Court of Canada, where LEAF is also intervening. The hearing has not yet been scheduled.

At the Quebec Court of Appeal, LEAF and the FFQ were represented pro bono by Geneviève Claveau, Sean Griffin, Lana Rackovic, Véronique Roy, and Fady Toban (Langlois Avocats).

Our case committee memberso at the Quebec Court of Appeal, who guided, informed and supported this intervention, were: Natasha Bakht, Safa Ben Saad, Dolores Chew, Samaa  Elibyari, Nancy Labonté, Laïty Ndiaye, Nathalie Léger, Samira Laouni, Colleen Sheppard, and Sandra Wesley. 

At the Supreme Court of Canada, Véronique Roy, Simon Bouthillier, and Anita Badaku-Kpalley (McCarthy Tétrault LLP), as well as Cee Strauss (LEAF Senior Staff Lawyer), are representing LEAF in this intervention.    

Our case committee members for this intervention at the Supreme Court are: Sara Arsenault, Beverley Baines, Natasha Bakht, Nathalie Léger, and Colleen Sheppard.  

See the Court of Appeal’s decision here.

See LEAF’s factum at the Quebec Court of Appeal (translated from French) here.

See LEAF’s factum at the Supreme Court of Canada here.